Altman-Gubernikoff v. Garely

Background

Marcy Altman-Gubernikoff and George Gubernikoff brought fifteen causes of action. They asserted medical-malpractice and vicarious-liability claims against Alan Garely, M.D., and Mount Sinai South Nassau, and state-law claims against American Medical Systems (AMS) involving pelvic mesh products. The claims against several Endo entities had already been voluntarily dismissed.

The plaintiffs alleged that Altman received medical care from the medical defendants between April 26, 2012, and September 1, 2015. The complaint alleged that she suffered injuries and complications involving a pelvic mesh implant, including inflammation, additional medical procedures, pain, tissue and nerve damage, and bladder cancer. The court noted, however, that the complaint did not plead facts showing that Dr. Garely implanted the mesh. The plaintiffs asserted that fact in their briefing, but the court would not treat new facts in briefing as an amendment to the complaint.

The case was filed in New York state court on March 13, 2020. AMS removed it to federal court under the diversity-jurisdiction statutes. Diversity jurisdiction generally requires every plaintiff to be a citizen of a different state from every defendant. AMS acknowledged that the medical defendants were not diverse from the plaintiffs but argued that they had been fraudulently joined solely to prevent removal.

The Motion to Remand

The plaintiffs moved to remand, meaning they asked the federal court to return the case to state court. They argued that complete diversity was absent because the plaintiffs and medical defendants were New York citizens or entities. They also argued that the medical defendants had waived any objection to remaining in state court by litigating there before and after removal.

AMS argued that the medical-malpractice claims were barred by New York’s two-and-a-half-year statute of limitations. Because the alleged treatment ended on September 1, 2015, and the complaint was not filed until March 13, 2020, AMS contended that there was no possibility of recovering against the medical defendants in state court.

Fraudulent Joinder and the Statute of Limitations

Fraudulent joinder is an exception to the ordinary diversity requirement. A removing defendant must show by clear and convincing evidence either that the plaintiff committed outright fraud in the pleadings or that, based on the pleadings, there is no possibility that the plaintiff can state a claim against the non-diverse defendant in state court. The removing defendant bears a heavy burden, and factual and legal doubts are generally resolved for the plaintiff.

New York’s statute of limitations for medical malpractice is two years and six months from the relevant act or omission, or from the last treatment for the same condition when continuous treatment applies. The court also discussed New York’s exception for discovering a foreign object left in the body. That exception does not apply to an intentionally implanted medical device that was meant to remain in the body to serve a continuing treatment purpose.

The court rejected the plaintiffs’ argument that New York law contained a relevant split of authority concerning intentionally implanted medical devices. It distinguished a case involving a catheter fragment that was not intended to remain in the patient’s body and served no purpose after surgery. The court concluded that the foreign-object exception did not preserve the plaintiffs’ claims based on the facts presented.

Accepting the complaint’s allegations about the treatment period as true, the court calculated that the medical-malpractice claims expired on March 1, 2018. Because the complaint was filed on March 13, 2020, the claims were time-barred. The court therefore held that AMS had met its burden to show that the plaintiffs had no possibility, based on the pleadings, of stating a medical-malpractice claim against the non-diverse medical defendants in state court. The medical defendants were consequently fraudulently joined, and their citizenship did not defeat diversity jurisdiction.

Rule of Unanimity

The plaintiffs separately argued that remand was required under the rule of unanimity. That rule generally requires all properly joined and served defendants to consent to removal within the statutory period. The court recognized an exception for fraudulently joined defendants.

Because the court found that the medical defendants were fraudulently joined, their failure to consent to removal and their participation in state-court litigation did not require remand.

Disposition

The court denied the plaintiffs’ motion to remand and directed the Clerk of Court to terminate the motion. This order decided whether the federal court could retain the removed case; it did not decide the ultimate liability of AMS or the medical defendants on the underlying injury claims.